HOLYOKE -- Toy guns and whether selling them at events like the St. Patrick's Parade should be prohibited is set to spark debate Tuesday among members of the City Council Ordinance Committee.

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Ordinance Committee Chairwoman Rebecca Lisi filed the order to have the council consider adopting such a ban after marching in the March 23 parade and seeing the number of toy guns and weapons that children were playing with along the route.

The Law Department filed a proposed ordinance that would establish such a ban for the Ordinance Committee to consider. There is not a substantial amount of federal case law on banning sales of toy guns, the proposal said.

"Massachusetts law already prohibits the sale of novelty lighters that are in the shape of a firearm," the proposal said.

Enforcement of the ordinance would be done by police, but the proposal has left blank, for councilors to determine, the amount of a fine for violations.

Here is the proposed ordinance from the Law Department:

I. Introduction

In response to the April 1, 2014 order from the Ordinance Committee, the Law Department has prepared this memorandum and proposed ordinance regarding the banning of the sale of toy guns by mobile vendors. This request arose out of apparent concerns by City Council and members of the public regarding sale of such toys firearms by mobile cart vendors at certain events in the City, namely the Holyoke St. Patrick's Day Parade. In order to ensure compliance with Federal and Massachusetts law, the Law Department has performed this analysis to address concerns regarding the legality of such a ban, as well as to propose a draft ordinance for consideration by this Committee.

II. Federal Law Analysis

There already exists a framework for the regulation of certain toy guns in Federal statutes and regulations. In 1988, Congress passed and codified 15 U.S.C. §5001, titled "Penalties for entering into commerce of imitation firearms." Pursuant to that statute, regulations that defined the specific requirements for the permissible sale of such imitation firearms were promulgated. 15 C.F.R. §272.1 - 5 expands that in order for an imitation firearm to be marketable in the United States, such item must satisfy a number of specific requirements. If applicable, §272.2 bans the sale of imitation firearms that lack certain cosmetic features, namely either having an orange tip, or being made of a translucent material, or a bright color (white, red, orange, yellow, blue, pink purple, or any combination of these). 15 C.F.R. §272.3

The framework specifically does not apply to certain types of imitation firearms, namely, non-firing antique replicas (copies of firearms designed, manufactured, and produced prior to 1898), "BB" guns, paint-ball guns, metallic pellet firing guns (using compressed air, gas, or mechanical spring action), and decorative or ornamental objects with the shape of a firearm that are under a certain size. 15 C.F.R. §272.1. The sale of such items are specifically allowed, and state laws are preempted under 15 U.S.C. § 5001 (g)(i) - (ii), except as they apply to the sale of such imitation firearms to minors.

There has not been a substantial amount of litigation over the federal scheme for the sale of imitation firearms. The case most referenced is a New Jersey Federal District Court case in which it was specifically stated that the Federal scheme preempts conflicting state law, and prohibits the banning of certain imitation firearms, as described in the above paragraph. Coalition of New Jersey Sportsmen v. Florio, 744 F.Supp. 602 (D.N.J.1990). There are no readily identifiable relevant Massachusetts decisions on this statutory scheme, or directly applicable Federal judicial rulings.

In short, there are some Federal restrictions on the City's ability to ban all toy guns. The statutes mentioned specifically prohibit banning certain types of 'toy' guns, but are silent as to the City's ability to ban most other types. Thus, if the ordinance is carefully worded, it should be fully enforceable.

III. Massachusetts Law Analysis

Massachusetts law already prohibits the sale of novelty lighters that are in the shape of a firearm. M.G.L. ch. 148 § 60. There are no other provisions that ban the use or sale of such imitation firearms. One other law provides an exemption to a ban on firework type devices, allowing the sale and use of so-called "cap-guns." M.G.L. ch.148 § 39. There is no relevant case law on either of those statutes.

As a side note, Holyoke ordinances already ban the sale of air rifles, BB guns, and paintball guns to minors, and the use of same by minors without presence of an adult. Holyoke Code. Ordin. (Mass) §54-16 (2008).

IV. Proposed Ordinance and Analysis.

To effectively ban the sale of toy guns in a way that comports with State and Federal law, the ordinance should be structured in this or a similar manner:

(a) Definitions - For purposes of this section, the following definitions shall apply:

Imitation firearm shall mean any device or object that is a toy version or facsimile of, or is reasonably likely to be perceived as: a pistol, revolver, shotgun, rifle, machine gun, sub-machine gun, rocket launcher, or other firearm or explosive weapon. Imitation firearm shall NOT mean: any look-alike, nonfiring, collector replica of an antique firearm developed prior to 1898, or traditional B–B, paint ball, or pellet-firing air guns that expel a projectile through the force of air pressure. This definition shall be construed to be in conformity with 15 U.S.C. § 5001 and 15 C.F.R. §272.1.
Mobile vendor shall mean any person who is engaged in the selling of goods of any kind, who does business from a vehicle that can be pushed or pulled by hand or other means, or which is otherwise temporary or is capable of being moved from one location to another.

(b) Offenses

(1) A person commits an offense if he, either personally or through an employee or agent, sells, or offers for sale an imitation firearm as a mobile vendor.

(2) Mobile vendors, whether they be the operator, owner, agent, employee or person in control, commits an offense if an imitation firearm is present in or on the vehicle in which the mobile vendor does business

(c) Enforcement – This section shall be enforced by the Police. A person who violates a provision under this section is guilty of a separate offense for each day or part of a day during which the violation is committed, continued, or permitted. Each offense, upon conviction, is punishable by a fine not to exceed $ XXX. As an alternative, this section may be enforced through the non-criminal disposition procedures of M.G.L. Ch. 40, Sec. 21D.

(d) A copy of this ordinance shall be provided to any mobile vendor licensed by the City.